C. The conclusion of the Honorable Court of Appeals (and the Honorable Labor Arbiter) that respondent did not abandon his job and that petitioner illegally dismissed him, is correct.

D. Private Respondent should be reinstated.

Discussion

A. Petitioner raises new matters, worse, all questions of fact, beyond the office of its present petition.

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In response to private respondent’s petition before the Honorable Court of Appeals on February 15, 2001, petitioner PRRM filed its Comments dated February 12, 2001 and with undisguised confidence brushed aside the Petition of herein respondent with the following compact asseverations :

1. On February 1, 2001 it received a resolution dated January 11, 2001 requiringthem to file this Comment within ten days from notice thereof.

2. The deadline supposed to be due on February 11, 2001, which fell on a Sunday,therefore the final deadline was on the next working days which is Monday,Februay 12, 2001.

3. At the outset, the petition should be dismissedbecause it failed to comply with the formal requirement that a certified truecopy of the orders being assailed should attached to it. The record show thatcompliance of this requirement was not met insofar as the order dated September26, 2000 is concerned.

4. THE PETITION WAS FILED OUT OF TIME.

5. In a resolution dated December 13, 2000 by this Honorable Court, after thepetitioner filed an extension of time to file this petition, said petitioner wasgiven until December 22, 2000 to file this petition. However, from the very faceof the petition, a look of the verification/certification portion shows that thesame was subscribed on December 27, 2000. On this basis it is very obvious thatthis petition is filed out of time, and must therefore be dismissed.

6. Finally, the petition from its allegations also failed to show that it met thegrounds for which a petition for review on certiorari can be obtained there isno showing of any grave abuse of discretion in its allegation.

In other words, the alleged points or errors now being raised by petitioner PRRM were never raised or brought to the attention of the Honorable Court of Appeals at the very first instance. Instead it attacked the petition on alleged technical infirmities unaware that petitioner went before the Honorable Court of Appeals under Rule 65 and within the period of sixty (60) days from receipt of the questioned decision (Section 4 Rule 65).

By going before this honorable Court strictly on appeal under Rule 45, the new matters that petitioner belatedly is raising are barred in the absence of compelling circumstances that would justify this Honorable Court to relax the rules and existing jurisprudence.

The case of Agabon vs. NLRC (G.R. No. 158693, Nov. 17, 2004) is not applicable since the controversy disposed of herein transpired in February, 1997, seven (7) years prior to the promulgation of Agabon. Moreover, Agabon has no application because the facts thereof are different from here. While Agabon appears to have a semblance of just cause for termination, here there is no perceptible ground for dismissal. The issue here is abandonment at first denied by petitioner, and later espoused by it, to no avail however.

B. Petitioners, even at the last moment, maligns the integrity of private respondent and subliminally argue before this Honorable Court that its gut feel in terminating the private respondent is right.

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It has been a kneejerk reaction of erring companies to demonize their illegally dismissed employees. Where the complaining worker prevailed whether before the level of the Labor Arbiter or on appeal before the NLRC, Court of Appeals, or before this Honorable Court, unscrupulous companies fabricate and drum up non-existing charges or misdemeanor usually involving the moral fiber of the worker, thus, implying that the termination was due to loss of trust and confidence, and therefore the termination was within the ambit of management prerogative. Since the moral integrity of the worker is suspect, crooked companies expect that the labor agency, or the appellate court since the rules hereof are flexible, would fall for it. Thru this expedient, petitioner wants to initiate a collection case against private respondent, certainly a cause of action alien to the issue herein. Petitioner wants to economize on filing fees.

The truth of the matter is that the amount being bruited about the petitioner was ably explained by private respondent and since petitioner never claimed it at the first instance, on how the funds were disbursed. On this score the Labor Arbiter ruled:

“PRRM raises the defense that it did not dismiss Pulgar the complainant, and itwas Pulgar who abandoned his job. Indeed, the failure of Pulgar to submit a copyof a termination letter issued by PRRM would seem to support PRRM’s contentionthat it had not dismissed Pulgar. However, PRRM’s claim that Pulgar abandonedhis job is without merit. For, it is elementary that in order for abandonment toexist, it is essential (i) that the employee must have failed to report for workor must have been absent without valid or justifiable reason; and (ii( thatthere must have been a clear intention to sever the employer-employeerelationship manifested by some over acts (Philippine Advertising CounselorsInd. Vs. NLRC, 263 SCRA 395). Furthermore, an employee who look stepsto protesthis lay off cannot be sold to have abandoned his work (Bontia vs. NLRC, 255 SCRA167).

In the present case, there can be no question that Pulgar had notabandoned his job. On March 17, 1997 and while the administrative investigationagainst him was ongoing he sent a letter to PRRM protesting the latter’s failureto afford which will reflect PRRM’s response thereto. Pulgar also alleged and hewas barred from entering the company premises in March 1997, an allegation whichwas not even rebutted by PRRM in its pleadings. Finally, Pulgar filed is illegaldismissal, an act which is totally inconsistent to PRRM’s defense that Pulgarhas abandoned his job.

In fact, PRRM had already pre-empted Pulgar’sreturn to work. Pulgar claims that his personal effects and papers were allcarted away and placed in storage. Pulgar attached photographs (Annexes C toC-5) in support of his charges. This serious allegation and the supportingphotographs, were never disputed/rebutted by PRRM.

By taking awayPulgar’s personal properties and barring him from the premises, PRRM had by itsactions already made its intentions clear vis-à-vis Pulgar’s continuedemployment i.e., it no longer considered Pulgar as its employee. Pulgar claimedthat he was, in fact, been dismissed is, supported by evidence.

x x x xx x x x x x x xHowever, a perusal of PRRM’s pleading would reveal that thelater does not raise as a relief an award for the return of the PPH/207,693.10.as it were, we cannot act on the same in view of PRRM’s failure (for reasonsknown only to it) to pray for such award.

The alleged forgery or fabrications bereft of any supporting evidence, designed to plainly malign the character and reputation of private respondent and/or mislead this Honorable Court were discussed in petitioner’s position paper below yet they were all rejected by the Hon. Labor Arbiter and the Court of Appeals. The allegations in the subject Petition and Motion for Reconsideration are mere rehash of the averments in the proceedings below. Except with the new theory that private respondent was still welcome in respondent company, the rest of the allegations are mere refrain and were already repudiated by the Honorable Court of Appeals and the labor Arbiter ;

Petitioner foists a fraud and misrepresentation to this Honorable Court. On account hereof, the petition should be dismissed outright. In its Petition, petitioner attached as Annex “E” the Decision dated March 31, 1999, of the Labor Arbiter Pablito Espiritu, Jr. Please notice that the copy of the said Decision omits crucial pages 10 and 11 thereof, copies thereof are hereto attached as ANNEXES “A” and “A-1” and made parts hereof.

In the said Decision of the Honorable Labor Arbiter it was ruled therein that “However, a perusal of PRRM’s pleading would reveal that the latter does not raise as a relief an award of the return of the two hundred seven thousand six hundred ninety three pesos and ten centavos (207,693.10), as a it were, we cannot act on the same in view of the PRRM’s failure (for reasons known only to) it to pray for such award”.

This alleged cause of action was already passed upon by the Labor Arbiter as early as it was never alleged that petitioner was represented by an incompetent counsel from day one.

By the indirect allusion to the funds allegedly disbursed by the private respondent, the intention is obvious. Petitioner wants to obfuscate the issue by depicting the private respondent, notwithstanding his explanation on the whereabouts of the funds, as “untrustworthy”, hence, petitioner was justified in terminating the private respondent because of his “abandonment”.

When the case was elevated before the NLRC on appeal and a decision thereon was rendered, petitioner did not appeal the same. Hence, it was bound by the findings of the NLRC later on reversed by the Honorable Court of Appeals. When it was the turn of private respondent to seek reversal thereof before the Honorable Court of Appeals, petitioner was silent on this alleged floating amount as above-indicated in its Comment to the petition before the appellate court.

It is hornbook law that equity operates only in the absence of specific statute. In this case however there is a slew of rules suppletory in character declarative of effective waiver once a cause of action was not seasonably pleaded. (Section 1, Rule 9)

EFFECT OF FAILURE TO PLEAD

Defenses and objections not pleaded. – Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (emphasis ours)

In other words, as early as the filing of its Position Paper petitioner did not demand as a relief the return of the said amount. This Honorable Court would put premium on negligence and laches if it were to grant the prayer of the petitioner by converting itself as collection agency thru the expedient of this Petition for Review under Rule 45.

Finally, we sustain the award of backwages to respondent Santos up to December 11, 1998, when respondent Santos became 65 years old. We do not subscribe to the view of the petitioners that payment of backwages to respondent Santos should be computed only up to December 11, 1993, when respondent Santos reached 60 years of age. It is worth noting that in their motion for reconsideration before the Court of Appeals, petitioners merely attached the Service Record and Baptismal Certificate of respondent Santos to support their contention that under respondent school's policy teachers retire upon reaching the age of 60 and, thus, the amount of backwages to respondent Santos should be up to December 11, 1993 only, when she reached 60 years of age. The documentary evidence appended to the instant petition for review by the petitioners, which is not a newly discovered evidence, to substantiate its view and belated allegation on the existence of a school policy to retire teachers upon reaching 60 years of age cannot be considered at this stage. Petitioners could have presented and offered in evidence documents on the existence of the alleged school policy before the Labor Arbiter or the NLRC but they failed to do so nor have they offered adequate explanation for their failure to present and offer the said documents in evidence. It is basic that evidence not formally offered before the court below cannot be considered on appeal. Thus, such documents cannot be admitted, much less given probative value, in this appeal. To do so would be repugnant to the demands of justice and fair play. Let it be stressed that in petitions for review on certiorari, the jurisdiction of this Court in cases brought before it from the Court of Appeals is limited to reviewing questions of law, which involve no examination of the probative value of the evidence presented by the litigants or any of them (emphasis ours).

With this patent and malicious misrepresentation, the petition should be dismissed outright for not being forthcoming and candid to this Honorable Court.

Canon 22 of the Canons of Legal Ethics is a constant reminder to the members of the Bar that the conduct of a lawyer before the court "should be characterized by candor and fairness"; and it is "unprofessional and dishonorable to deal other than candidly with the facts ... in the presentation of causes." When the question of whether execution should issue against Jose M. Aruego, a member of the Bar, did emerge before the lower court in the proceedings for execution of the judgment, candor and fairness should have impelled him to tell the court that the representation of counsel for plaintiff that University Publishing Company, Inc. is not a corporation, was not true, and that the corporation had the papers and documents to show otherwise. He should not have kept this fact under wraps for so long a time while the execution proceedings were still with the lower court and before judgment on the appeal taken by plaintiff in L-19118. He has failed in these. Literally, he laid an ambush. It was only after he realized that this Court considered him as the real party in interest that he presented the fact of corporate existence to this Court to overturn the decision rendered in L-19118. Where a party "has taken a position with regard to procedure, which has been acted or relied on by his adversary or by the court," he must be held to be in estoppel "from taking an inconsistent position respecting the same matter in the same proceeding, to his adversary's prejudice."(emphasis ours, Albert vs. Court of First Instance of Manila Br. VI, G.R. L-26364, May 29, 1968)

Petitioner’s counsel is guilty of violating Cannon 10 of the Code of Professional Responsibility which states:

CANNON 10 – A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any Court; nor shall be mislead, or allow the Court to be misled by any artifice.

Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision of authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Rule 10.03 – A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. (emphasis ours)

Any lawyer who comes before this Honorable Court must take the high road. By appending a deficient documentary proof it foists an abominable misrepresentation. A two-page deficiency can hardly be passed off as an innocuous lapse. If at all, it was the core of the plea. It would appear by all accounts that the petitioner would go to any length just to get its desired reversal of the denial of its petition on some alleged technical grounds. By all indications, petitioner grins from ear to ear when it did obtain successfully the revival of its otherwise moribund petition and looks patronizingly at the direction of the lowly private petitioner if he could duplicate its feat.

D. Petitioner harped on abandonment below and not about the funds, the disbursement whereof by petitioner was fully explained.

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It is gratuitous on the part of the petitioner to claim that private respondent is free to come back. Petitioner is trifling with its petition. As correctly ruled below if indeed the private respondent has amounts to be settled to the respondent the latter has up to now not made any effort to claim the said accountability. It wants no less than this Honorable Court to order the private respondent to return the alleged savings. If at all it is petitioner which abandoned its claims from the said accountability. Since it was not pursued it is unjustified for petitioner to once again bark on them with the only purpose of maligning the humble integrity of private respondent ;

E. Private Respondent, by the strength of St. Michael’s doctrine, should be reinstated.

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On the basis of the allegations in petitioner’s Motion for Reconsideration with spliced documentary Annexes, this Honorable Court granted the same and reinstated the petition. We say petitioner’s luck bumps a dead end, and it should pay for its misrepresentations.

We again cite with approval the precedent ruling of this Honorable Court in St. Michael (supra):

We reiterate the settled doctrine in termination of employment disputes that the burden of proof is always on the employer to prove that the dismissal was for a just and valid cause.22 Evidence must be clear, convincing and free from any inference that the prerogative to dismiss an employee was abused and unjustly used by the employer to further any vindictive end.

Misconduct is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment.23 As a just cause for termination, the misconduct must be serious, which implies that it must be of such grave and aggravated character and not merely trivial or unimportant. On the other hand, disobedience, as a just cause for termination, must be willful or intentional. Willfulness is characterized by a wrongful and perverse mental attitude rendering the employee's act inconsistent with proper subordination.24 Not every case of insubordination or willful disobedience by an employee of a lawful work-connected order of the employer is reasonably penalized with dismissal. As we have stated, there must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and, on the other hand, the penalty imposed therefor.25 In the instant case, evidence is wanting on the depravity of conduct, and willfulness of the disobedience on the part of the respondents. Absence of one day of work to join a public rally cannot be of such great dimension as to equate it with an offense punishable with the penalty of dismissal. The reinstatement of the respondents is, thus, just and proper.

On the matter of the award of backwages, petitioners advance the view that by awarding backwages, the appellate court "unwittingly reversed a time-honored doctrine that a party who has not appealed cannot obtain from the appellate court any affirmative relief other than the ones granted in the appealed decision." We do not agree.

The fact that the NLRC did not award backwages to the respondents or that the respondents themselves did not appeal the NLRC decision does not bar the Court of Appeals from awarding backwages. While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, the Court of Appeals is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice.

Article 279 of the Labor Code, as amended, mandates that an illegally dismissed employee is entitled to the twin reliefs of (a) either reinstatement or separation pay, if reinstatement is no longer viable, and (b) backwages. Both are distinct reliefs given to alleviate the economic damage suffered by an illegally dismissed employee and, thus, the award of one does not bar the other. Both reliefs are rights granted by substantive law which cannot be defeated by mere procedural lapses. Substantive rights like the award of backwages resulting from illegal dismissal must not be prejudiced by a rigid and technical application of the rules. The order of the Court of Appeals to award backwages being a mere legal consequence of the finding that respondents were illegally dismissed by petitioners, there was no error in awarding the same (emphasis ours).

F. No abandonment

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The Honorable Labor Arbiter had the opportunity to observe the actuations, behavior and demeanor of the parties. The actual observation made by the Labor Arbiter was all reflected in his Decision affirmed by the Honorable Court of Appeals.

I

t is axiomatic that the burden of proof in illegal dismissal cases falls on the respondent company, i.e., for the latter prove that the dismissal was valid and in accordance with law (Lim vs. NLRC, 259 SCRA 485). In this regard, the respondent company’s contentions in respect of the validity of the dismissal must be supported by the evidence, failure of which will lead to the inexorable conclusion that, indeed the company’s decision to dismiss was contrary to law.

This is a complaint for illegal dismissal, illegal suspension, and non-payment of service incentive leave pay and 13th pay filed by complainant Virgilio E. Pulgar (“Pulgar for short”) against his former employer, Philippine Rural Reconstruction Movement (“PPRM for short”) and three (3) PRRM officials who he claims to have been responsible for his dismissal. Pulgar also claims for P421,533.33 in actual damages, moral damages and attorney’s fees. PPRM’s President, Mr. Horacio Morales Jr. was not impleaded as a party-respondent for reasons known only to Pulgar. During the clarificatory conferences Pulgar’s charge of illegal suspension was deleted, and his claim for payment of service incentive leave to pay was withdrawn.

This Arbitration Branch was more less than lenient to the parties by scheduling eight (8) conferences to enable then to arrive at an acceptable compromise to their differences. In view of their failure to settle their differences despite ample time given them, the parties were ordered to file their respective Position Papers and responsive pleadings.

On August 3, 1998, and after determining that this case could be decided on the basis of the parties’ pleadings, this Arbitration Branch promulgated an Order submitting the case for decision. Neither party filed any motion taking exception to the aforementioned pronouncement.

Pulgar’s version of the incidents leading to his dismissal are in pertinent part as follows: sometime in March 1997, he was not allowed to enter the company premises; his personal properties and records were removed from his desk, placed in boxes and kept for storage upon the instructions of respondent Dionisio; on March 17, 1997, he submitted a letter to respondents, protesting the latter’s failure to afford him his right to confront the witnesses against him; and that he was forced to file the present complaint on April 3, 1997, Pulgar charges that he was constructively dismissed when he was barred from entering company premises in March 1997. Finally, his claim of actual damages of P421,533.33 is based on a listing of projects he allegedly headed, and the cash incentives due him in accordance with an Office Order No. 91-01A.

Respondent’s defenses, on the other hand, in pertinent part are as follows: Pulgar was not dismissed but had abandoned his job for failing to report back to work after the lapse of his leave of absence on April 15, 1997; he was the subject of an ongoing administrative investigation in connection with alleged financial anomalies during Pulgar’s term as manager of the PRRM Tayabas Bay Field Office (TBFO); and he owed PRRM P207,693.10 as alleged “savings” as TBFO manager.

After going over the averment of both litigants, the issues are: (1) Whether or not PRRM is guilty of illegal dismissal; (2) Whether or not PRRM is liable to Pulgar for unpaid incentives of P421,533.33; and (3) Whether or not Pulgar is entitled to 13th month pay, damages and attorney’s fees.

On the issue of illegal dismissal, this Office finds for the complainant.

PRRM raises the defense that it did not dismiss Pulgar, and that it was Pulgar who abandoned his job. Indeed, the failure of Pulgar to submit a copy of a termination letter issued by PRRM would seem to support PRRM’s contention that it had not dismissed Pulgar. However, PRRM’s claim that Pulgar abandoned his job is without merit. For, it is elementary that in order for abandonment to exist, it is essential (i) That the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (ii) that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts (Philippine Advertising Counselors Inc. vs. NLRC, 263 SCRA 395). Furthermore, an employee who took steps to protest his lay-off cannot be said to have abandoned his work (Bonita vs. NLRC, 255 SCRA 167).

In the present case, there can be no question that Pulgar had not abandoned his job. On March 17, 1997, and while the administrative investigation against his was ongoing, he sent a letter to PRRM, protesting the latter’s failure to afford him his right to confront the company’s witnesses. There is nothing on record which will reflect PRRM’s response thereto. Pulgar alleged that he was barred from entering the company premises in March 1997, an allegation which was not even rebutted by PRRM in its pleadings. Finally, Pulgar filed this illegal dismissal complaint within a few weeks after what he perceived to have been his date of dismissal, an act which is totally inconsistent to PRRM’s defense that Pulgar had abandoned his job.

In fact, PRRM had already pre-empted Pulgar’s return to work. Pulgar claims that his personal effects and papers were all carted away and placed in storage. Pulgar attached photographs, were never disputed/rebutted by PRRM.

By taking away Pulgar’s personal properties and barring him from the premises, PRRM had by its action already made its intentions clear vis-s-vis Pulgar’s continued employment i.e., it no longer considered Pulgar as its employee. Pulgar’s claim that he has, in fact, been dismissed is, therefore, supported by evidence.

The two-fold requirements for a valid dismissal are as follows: (1) dismissal must be for a cause provided for in the Labor Code, which is substantive; and (2) the observance of notice and hearing prior to the employee’s dismissal, which is procedural (Ranises vs. NLRC, 262 SCRA 371). In the case at bench, PRRM removed Pulgar’s belongings and kept the same in storage despite the absence of conclusive findings that Pulgar was engaged in anomalous transactions as manager of TBFO. Indeed, despite the passage of more than two (2) years, this Arbitration Branch has not even received any supplemental evidence from PRRM on the outcome of its administrative investigation in respect thereof. Thus, even assuming for the sake of argument that Pulgar has not been dismissed, there exists no cause, just our otherwise, to sustain Pulgar’s continued loss of employment.

Furthermore, the records are bereft of any evidence that PRRM complied with the procedural due process in effecting the dismissal of Pulgar on the ground of abandonment. The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination may be validly effected (Philippine Savings Bank vs. NLRC, 261 SCRA 409). In the case at bar, PRRM failed to (i) inquire in writing Pulgar’s last known address, the reason/s for his continued absences after April 15, 1997, with a demand for him to immediately report to work, under pain of loss of employment (Sec. 2 Rule 14 Bk. 5 Omnibus Implementing Rules of Labor Code); and (ii) inform Pulgar in writing that he had lost his employment in view of his continued absences after April 15, 1997 despite demand/s for him to report to work.

Pulgar having failed to comply with substantive and procedural requirements prior to considering an employee to have lost his employment, PRRM’s act of dismissing Pulgar is indeed illegal.

On Pulgar’s claim for actual damages, this Arbitration Branch rules for PRRM.

Pulgar claims that he is entitled to incentives under Office Order No. 91-01A. As it were, the burden is on him to prove that the provisions of said Order relative to the works he performed apply to him. For each party must prove his own affirmative allegations, and the burden of proof lies on the party who would be defeated if no evidence were given on either side (Section 1, Rule 131, Rules of Court).

Pulgar attached a copy of Office Order No. 91-01A, and list of projects (Annex A-2, Pulgar’s Position Paper) which he claims were those he worked on. However, and as correctly pointed out by PRRM, Pulgar failed to show that he was a part of a duly-constituted Project Development Team (PDT) and, specifically, part of the PDT’s which participated in the projects mentioned in said Annex. Furthermore, this Arbitration Branch takes note that: (1) under Office Order No. 91-01A, cash awards/incentives should not exceed P100,000.00 as cash reward, thus, making his computations dubious; and (2) the supposed cash awards in several instances involve more than one (1) person. Hence, it is ludicrous to take face value Pulgar’s claims for the entire amount of cash awards as provided in his list, Annex A-2. Finally, Pulgar failed to specify the dates when the projects were initiated/implemented and as it were, when the cash awards became due. Suffice it to state that all money claims arising from employer-employee relations shall be filed within three (3) years from the time the cause of action accrued, otherwise they shall forever barred (Article 291, Labor Code). In this regard, this office cannot presume that the projects listed by Pulgar as attributable to him (Annex A-2) were all done within 3-year prescriptive period. For want of sufficient evidence, Pulgar’s claim for cash awards under Office Order No. 91_01A cannot granted.

Considering that Pulgar was illegally dismissed, he is entitled to 13th month pay for 1997 and 1998, which should have been given to him had he maintained his employment up to present. On the otherhand, this Arbitration Branch sees no compelling reason to award moral and exemplary damages to Pulgar. An award of moral and exemplary damages cannot be justified solely upon the premise that the employer fired his employee without just cause or due process (PSBA-Manila vs. NLRC, 261 SCRA 189). Considering that it had basis to investigate Pulgar for certain fiduciary acts during his employment, this Arbitration Branch cannot attribute any reckless or ill motive on the part of PRRM in subsequently barring Pulgar from the company premises. Finally, an award at attorney’s fees is improper where it has been shown (as in the present case) that the employer did not act with the with malice in dismissing the employee (Pizza Hut/Progressive Development Corporation vs. NLRC, 252 SCRA 531).

On the matter of the individual respondent’s liability, this Arbitration Branch hereby holds then free from any responsibility, in whole or in part, in the outcome of this case, there being insufficient evidence that they had actively participated in the illegal acts committed by PRRM against Pulgar.

One final note. The Labor Code allows for claims made by employers against employee arising from employer-employee relations. In this case, the records show that Pulgar holds the amount of P207,693.10 as alleged “savings” as manager of TBFO. PRRM attached Annex 11, which is the saving’s passbook of Pulgar with Cooperative Bank of Quezon Province, the existence of which was not denied by Pulgar before this Arbitration Branch. There is nothing on record which would show that this amount has been returned to PRRM. In fact, PRRM attached the signed statement of a Ms. Megnon B. Salatiera dated March 5, 1997, attesting to the fact the amount of P207,693.10 was not turned over to her. However, a perusal of PRRM’s pleading would reveal that the later does not raise as a relief an award for the return of the PPH/207,693.10. as it were, we cannot act on the same in view of PRRM’s failure (for reasons known only to it) to pray for such award.

Pulgar’s monthly salary at the time of his dismissal was P12,525.00. Considering that he was paid his salary up to and including April 15, 1997, he is, therefore, entitled to full backwages including 13th month pay as of the date of this decision. However, considering that the relationship between the parties is already strained on account of the accusations of the respondent regarding complainant’s fiduciary relationship regarding monetary matters, the alternative relief of separation pay ½ month salary for every year of service in lieu of reinstatement is in order.

Wherefore, judgment is hereby rendered declaring the dismissal of the complainant as illegal and concomitantly Respondent Philippine Rural Construction Movement (PRRM) is hereby ordered to pay complainant full backwages in the amount of P319,387.50

Furthermore, Respondent is hereby ordered to pay complainant separation pay in the amount of P68,887.50.

In its position paper petitioner has categorically stated that “on the contrary, the records show that respondent (complainant below) abandoned his job. He did not return to work after his leave of absence expired on April 15, 1997” (Position Paper of petitioner dated February 16, 1998 p.9). It is very clear therefore that petitioner has focused on the theory that it has a well grounded basis to terminate the services of petitioner on the basis of alleged abandonment ;

Contrary to the unfounded allegations of the petitioner, private respondent seasonably protested his constructive dismissal between the period March to April 15, 1997 by a series of demand letters and finally by filing a complaint below when private respondent was already physically and psychologically barred from entering the premises of the petitioner. This position was documented and never gainsaid by petitioner ;

All of a sudden, petitioner turned around from its position by claiming that private respondent was after all not terminated. Petitioner went on to narrate alleged circumstance, belatedly raised, why private respondent was not fired ;

The Honorable Court of Appeals correctly ruled as follows:

The issue whether petitioner was validly dismissed is a factual one and, generally, factual findings of the NLRC are accorded respect. In this case, however, there is compelling reason to deviate from this salutary principle because the findings of fact of the NLRC are in conflict with that of the Labor Arbiter. Accordingly, this Court must of necessity review the records to determine which findings should be preferred as more conformable to the evidentiary facts.

Petitioner alleges that he was constructively dismissed when he was barred from entering respondent company’s premises sometime in March 1997. For its part, respondent contends that petitioner abandoned his job, when he failed to return after the expiration of his leave of absence on April 15, 1997.

It appears that petitioner was refused entry to the respondent company’s premises during the period he was being investigated for some irregular financial transaction; and that his personal properties and records were removed from his office by respondent’s employees and placed in its storeroom.

All of the foregoing allegations remained unrebutted by respondent. No reply or answer was submitted by the latter to explain or deny them.

In this jurisdiction, it is incumbent upon the respondent to prove by the quantum of evidence required by the law that petitioner was not dismissed; or if dismissed, that the dismissal was not justified or authorized; otherwise, the dismissal would be illegal. In the instant case, respondent utterly failed to prove that petitioner was not constructively dismissed.

Accordingly, we uphold the following findings of the Labor Arbiter:

“On the present case, there can be no question that Pulgar had not abandoned his job. On March 17, 1997, and while the administrative investigation against his was ongoing, he sent a letter to PRRM, protesting the latter’s failure to afford him his right to confront the company’s witnesses. There is nothing on record which will reflect PRRM’s response thereto. Pulgar alleged that he was barred from entering the company premises in March 1997, an allegation which was not even rebutted by PRRM in its pleadings. Finally, Pulgar filed this illegal dismissal complaint within a few weeks after what he perceived to have been his date of dismissal, an act which is totally inconsistent to PRRM’s defense that Pulgar had abandoned his job.

In fact, PRRM had already pre-empted Pulgar’s return to work. Pulgar claims that his personal effects and papers were all carted away and placed in storage. Pulgar attached photographs (Annexes “C” to “C-5”) in support of his charges. This serious allegation, and the supporting photographs, were never disputed/rebutted by PRRM.

By taking away Pulgar’s personal properties and barring him from the premises, PRRM had by its action already made its intentions clear vis-s-vis Pulgar’s continued employment i.e., it no longer considered Pulgar as its employee. Pulgar’s claim that he has, in fact, been dismissed is, therefore, supported by evidence.

In the present case, we are more inclined to take the Labor Arbiter’s finding of facts more consistent with the evidence than that of the NLRC.

Respondent’s allegation that petitioner abandoned work must be substantial by proof. To constitute abandonment, it is essential (1) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. Deliberate and unjustified refusal on the part of the employee to go back to his work-post and resume his employment must be established. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.

In the instant case, there was a complete failure on the part of the respondent to show proof that petitioner abandoned work. Except alleging that the latter abandoned his work when he failed to return after the expiration of his leave, no other proof was adduced by respondent. Clearly, the foregoing is not sufficient to discharge respondent’s burden proof. Hence, the Labor Arbiter correctly found :

“ x x x x In the case at bar, PRRM failed to (i) inquire in writing Pulgar’s last known address, the reason/s for his continued absences after April 15, 1997, with a demand for him to immediately report to work, under pain of loss of employment (Sec. 2 Rule 14 Bk. 5 Omnibus Implementing Rules of the Labor Code); and (ii) inform Pulgar in writing that he had lost his employment in view of his continued absences after April 15, 1997 despite demand/s for him to report to work”

Moreover, to refute respondent’s allegation of abandonment is the unmistakable fact that within the period petitioner was allegedly on leave, he instituted the instant case against respondent. It is a settled doctrine that the filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment, for an employee who takes steps to protest his dismissal cannot by logic be said to have abandoned his work. (Court of Appeals Decision pp. 4-7) (emphasis ours)

It is hornbook law that the appellant cannot raise new matters for the first time on appeal. The following comments are authoritative :

It is a settled rule that an issue which was not threshed out below may not be raised for the first time on appeal. Abella vs. Court of Appeals, 257 SCRA 482.

Points of law, theories, issues and arguments not adequately brought to the attention of the trial court need not be, and ordinarily will not be considered by the reviewing court as they cannot be raised for the first time on appeal. Philippine Airlines, Inc. vs. National Labor Relations Commission, 259 SCRA 459.

An issue which was neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time before the Supreme Court. San Miguel Foods, Inc. Cebu B-Meg Feed Plant vs. Laguesma, 263 SCRA 68.

Respondent has originally alleged in its position paper the defense that petitioner “abandoned his job” hence allegedly under the Labor Code respondent has a well founded ground to terminate the services of the petitioner. This is the original theory interposed tenaciously by the respondent below;

In its position paper the respondent has categorically stated that “on the contrary, the records show that (petitioner) abandoned this job. He did not return to work after his leave of absence expired on April 15, 1997” (Position Paper of respondent dated February 16, 1998 p.9). It is very clear therefore that respondent has focused on the theory that it has a well grounded basis to terminate the services of petitioner on the basis of abandonment;

Per paragraph 11 of petitioner’s Reply before the NLRC private respondent admitted that the ground for termination of petitioner was because “complainant (private respondent, herein) abandoned his job”. Yet, in the same vein, practically begging the question, and engaging in legal hermeneutics, claim that private respondent is not yet dismissed and he is still welcome to the petitioner There is no definition more fitting to describe significantly the alleged abandonment by the private respondent of his job than that accorded by petitioner ;

Petitioner is trying to refine the definition of abandonment to suit its purpose. This was correctly debunked by the Honorable Court of Appeals ;

The “abandonment” which was the original theory of the respondent was rejected correctly by the Honorable Court of Appeals ;

In reiteration, private respondent is consistent in his position paper that he was dismissed on March 31, 1997 when he was not allowed to enter the company premises. There were photographs which were attached to the Position Paper showing the locks which were installed and the personal effects of the private respondent were segregated and placed inside several boxes without his consent of complainant. There was no notice produced by petitioner to the effect that petitioner’s belongings/effects/documents were to be shanghaied from their usual location. The act of segregation and isolation bespoke of the frame of mind and intention of private respondent. No amount of ratiocination could explain the overt acts as above-described committed by petitioner ;

G. The findings of facts and the conclusions thereon by the Hon, Labor Arbiter and the Hon. Court of Appeals should not be disturbed anymore.

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Private respondent presented representative yet eloquent proof that he was physically and psychologically prevented from entering the premises of the petitioner by showing outoptic evidence that indeed he was prevented by the guard from entering the premises. As shown by the pictures marked in evidence, private respondent’s personal papers and effects were placed in boxes and forcibly without his consent stacked and padlocked in petitioner’s storeroom unaccessible to him. His office was forcibly padlocked by the representatives of the petitioner. This was not convincingly refuted by the respondent. As a matter of fact in their position paper below they admitted that indeed those pictures were representative of the facts being proved by private respondent ;

Furthermore, private respondent sent a seasonable demand letter to the petitioner by putting on record that there was no semblance of investigation pursuant to law. The restriction of private respondent effected by the petitioner from its premises to prove the allegation of abandonment and alleged loss of trust and confidence were correctly rejected by the Hon. Labor Arbiter ;

As early as March 17, 1997, the private respondent stated:If I would be investigated, I would also like to be allowed to pry on other closed projects. Please note that I have completed the project to the best of my ability and without my material gain on my part. I could see very clearly now that you are constructively dismissing me from PRRM without benefit of basic due process. I was told that the alleged investigator was receiving some threats and you seem to allude to me that I am the author thereof. The clear pattern is to avoid confrontation between me and the investigator and to be shown of her findings item by item.

This letter was never replied on by the petitioner. Silence is a token admission of the contents of the seasonable demand;

The above-indicated demand letter was followed by yet another letter during the pendency of the above-entitled case before the Honorable Arbiter. In a letter dated June 28, 1997 (Annex “C” of the Position Paper) the private respondent practically denied in detail the alleged loss of trust and confidence harbored by petitioner. The said letter of the petitioner was never responded to by the petitioner hence again it is an admission on petitioner’s part. In the aforesaid letter (Annex “E” of the Position Paper of Complainant) he raised the following :

1) There was no notice addressed to our client for him to submit to an Investigation relative to the shortage.2) There was no formal investigation conducted where our client was confronted by the persons who made the report and the records allegedly in support thereof.3) Our client was already constructively dismissed when he was prevented from reporting for work as early as March 17, 1997.

Petitioner is trying to belittle the detailed findings and conclusions of facts and law by the Hon. Labor Arbiter and the Honorable Court of Appeals. It is fortunate that the Hon. Labor Arbiter as correctly sustained by the Honorable Court of Appeals, has the opportunity to observe the demeanor of the parties and his actual observation is irreplaceable. Thus, the findings of facts and conclusion of law were logically arrived at and far from speculative ;

H. Ill-motive of petitioner to terminate private respondent.

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What was neither refuted nor traversed by the petitioner in its subject appeal was its putting the blame of authorship on of several white papers and anonymous letters circulated in PRRM imputing irregularities on Marie Liza Dacanay, Goyena Solis and Gregorio Dionisio the accusers of private respondent and also fabricated the unfounded charges re-echoed up to this level ;

In his position paper private respondent alleged :

Between February 1997 up to April 1997 there were various anonymous letters being circulated, copies thereof are hereto attached as ANNEXES “B”, “B-1” & “B-2” which tended to expose the irregularities in PRRM among whom are those committed by Liza Dacanay and Goyena A. Solis. The said persons being highly placed at PRRM suspected that I was behind all said personal attacks.

In fine, petitioner has an axe to grind against private respondent whom petitioner suspected as the instigator or author of the anonymous letters divulging the irregularities in PRRM, a non-government organization (NGO) with supposed lofty mission. It turned out that the persons mentioned above bilked PRRM dry, and obviously possessed with nothing but feet of clay. They turn on private respondent as scapegoat.

Petitioner is therefore inescapably liable for illegal dismissal of the private respondent :

Employee illegally dismissed after March 21, 1989, the date of effectivity of Republic Act No. 6715 which amended Article 279 of the Labor Code are entitled to full backwages. Valiant Machinery and Metal Corporation vs. Court of Appeals, 252 SCRA 379.

For an employee’s dismissal to be valid, two requisites must be met: (1) the employee must be afforded due process, and (2) the dismissal must be for a valid cuase. Pizza Hut/Progressive Development Corporation vs. National Labor Relations Commission, 252 SCRA 531.

ART. 279. Security of Tenure. – In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority, rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits of their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

Petitioner failed to refute petitioner’s allegations that :(a) There was no hearing whatsoever on the alleged termination of the petitioner ;

(b) The pictures showing the padlocking and the placing of the personal effects of the petitioner in boxes preventing him to work in respondent’s premises ;

(c) Failure of the respondent to claim the alleged accountability of petitioner from the time of filing of the above-entitled case for more than eight (8) years now ;

(d) He was never given his salary.

WHEREFORE, it is respectfully prayed that the Petition be dismissed for lack of merit.